It would be an understatement to say that the Supreme Court’s May 21 judgement reinstating Sir Michael Somare as Prime Minister has caused a certain degree of angst among Papua New Guineans.

Just when the country had breathed a national sigh of relief with the announcement that elections would go ahead, and observed that verbal commitment backed-up by tangible evidence – most notably the issuing of the writs by the Governor General, the Supreme Court has once again thrown an unwelcome spanner into the works.

Despite this latest development, the good news is that elections will go ahead due to the fact that Parliament has already risen and the writs have been issued – essentially no one has the power to defer the elections.

But some serious underlying issues have been revealed by this latest Supreme Court judgement which are quite concerning – and this does not bode well for PNG’s immediate future.

Firstly, it would be wise to note that public perception of the substance of the five-bench Supreme Court final judgement has been split evenly, with supporters arguing that Chief Justice Sir Injia Salamo has stood up for the Constitution, and detractors claiming that the judgement was laced with judicial bias.

The most damning indication that something is not quite right with the Supreme Court’s judgement is the reaction from the five-bench panel itself, with Deputy Chief Justice Gibbs Salikoa and Justice Bernard Sakora opting to disqualify themselves from the verdict based on ethical grounds.

For such an important decision, the self-disqualification of Deputy CJ Gibbas Salikoa & J Bernard Sakora rings alarm bells #PNG#pngpol

On making what little comment they did make, Deputy Chief Justice Salika abstained from reading his decision, saying his “conscience dictated” he could not be part of it, while Justice Sakora used tougher language, saying to participate would be to “disregard (my) judicial oath, legal ethics and the laws of the constitution”.

Their self-disqualification was based on themselves, along with all other members of the Supreme Court bench, being instigators and recipients of a February email which described Peter O’Neill’s government as being illegal and unconstitutional.

What really concerns me is that the 'bias' shown by the judiciary will be perceived to carry on into election-related legal proceedings #PNG

It is one thing for the judicial arm of government to be questioned by the Executive and segments of the public, and it is another thing altogether when it begins to question itself.

And already, some senior lawyers have called on the Chief Justice Sir Salamo Injia, and judges Nicholas Kirriwom and Les Gavara-Nanu to retire from the bench in order to save the face of the country’s judiciary.

Senior state-constitutional lawyer, Loani Henao, said while there is no issue with the decision of the court, the manner in which the decision was reached is of concern with possible bias, or at least the perception of bias:

“As long as they remain in office, they will be faced with nothing but distrust, lack of confidence of the people in them and lack of integrity, and it’s proper and a most honorable thing for the three learned judges to do for the sake of the independence of the Judiciary, and for the people of this country, is for them to retire and retire immediately.”

Meanwhile, Peter O’Neill has responded to the judgement by stating that he will appeal the Supreme Court decision because he believed the decision was mischievous and judicially biased.

His ignoramus deputy, Belden Namah, has gone a step further and demanded that unless the three judges whose decision favoured Sir Michael immediately resign, they will be arrested and charged with sedition.

Order 10 of the Supreme Court judgment declared that it was the duty of all persons, including the Governor-General, and the Speaker of Parliament and all other members of the Exective government officers, bodies and agencies to comply with the decision which is binding.

The Governor General has also publicly distanced himselffrom the current political/judicial stand-off and has refused to attend any political appointments or swearing-in ceremonies until after the elections.

PNG's judiciary has been unconditionally embarrassed. The nation's highest court/judge has made a judgement & nobody is adhering to it #PNG

People do not care about the judiciary or Injia anymore because justice never seems to have been served from his Office fairly in relation to Somare. As leader Somare never paid for not submitting his annual returns. He got a 2 weeks suspension from Office. what a joke? The People of Papua New Guinea, want Justice. Injia is the laughing stock of Papua New Guinea because common sense should prevail in these times. The people are tired of listening to verbal, and political diarrhea from them. The entire Judiciary has lost face due to Injia’s ignorance to allow common sense to previal in this time of great confusion, uncertainty, which he equally created from the start. You would think he would have called in international judges, as he did in relation to the case involving Somare’s leadership tribunal.

I think that this decision made by the three judges is seen as biased and in faviour of somare…This is painting a bad picture of our judical system in PNG. Legal advisors and those that are employed under the judical system of PNG should play their ethics when making decisions.

Yes Jacina – your view is the view of many Papua New Guineans. The flip side is that there are a significant number of people who do believe that the Chief Justice is doing the right thing as well. So we’re stuck in a bit of a pickle.

Common sense as perceived by some is one thing and is subject to individual variation and or community perceptions and norms, but the law is another thing, it is not subject and should not be subject to ones emotions or bias….so If the law has been interpreted objectively and factually based on the evidences before it then how can one accuse the judges for doing their job??? Are to choose what judgments/decisions to accept and what to ignore? Where does that leave this country?

I agree with you Frank on your opening statement – the law is not subject and should not be subject to ones emotions or bias. In stating that, the concerning factor with the May 21st judgement is the very fact that two members of the SC panel opted to abstain on ‘ethical’ grounds. That in itself is concerning.

I agree that we can not pick and choose judgements – possibly what would have made this judgement easier to swallow for all, including O’Namah, would have been the CJ allowing the transcripts from all presiding justices to be published and distributed for all to see.

This judgement is one of national importance. It deserves to be shared so all understand where, how and why such a judgement was made.

Tavurvur, people talk about ethics and upholding one’s oath like the two judges did in this case. But how could they argue ethical reasons when they released the email to the media (assuming one of them did) when the same ethical reasoning did not apply? Dispela em mi paul nau. Kirk

Where is the separation of powers? Judiciary will need to stay out of Politics, and election of Prime Ministers. These matters are clearly to be resolved on the floor of Parliament, not the Court Rooms.

From a streetman’s point of view, One wonders if the two judges who didn’t take part in the supreme court decision have other reasons also (scared, threatened, bribed?). I mean this is one of the biggest decisions of the country and why did they chicken out, apart from the popular ” preserving integrity court” lines they gave? Their actions have made their other colleagues look bad or vulnerable because of the brave decisions they made based on their interpretation of law, the final decision of which is against the ruling govt and hence have earned the full wrath of the O’Nama machine! It seems to me the 2 learned judges need to stick up for the country even if they have to make unpopular decision… This is not the time for the guardians of our constitution to take a ‘neutral sitting on the fence’ stand…

Frank, I like your inquisitive thoughts. Ask the two judges who were recepients to firstly the memo and then the email, in fact in therms of timing, of those communications it should be the other way around, but in respect of their wide publication, the memo was first in March. Were they mere coincidences that just few days before the hearing of the references, the memo was leaked out and judge concerned was aksed to disqualify but he did not and a day or so befoe the decision was hadned down, emial auhtored by him was released and this time two judges disqualify themselves and call is also made for judge to step down but he refused.

It is easy for non lawyers and public to condemn the three judges who gave their decisions and their two brothers judges decided to disqualify themslevs on grounds of bias after reading an email from one of them calling O’Neill’s government illegal. Every book that you read has a cover and the cover sometimes tells you the whole story of what the book contains. Sometimes the cover can be misleading too.

So before you cast the stone and call the three judges who gave their judgments all kinds of names, ask yourself. How did the email leak out from the judges? They are the ones who are circulated the email. Is it fair that on the eve of the decision that email is leaked out and two judges are using it to disqualify themselves when they must not be playing politics by delivering their decision whatever it is.

Now no one will know their true reason for not giving their decision. Or is it because there was no other way for them to rule in favour of O’Neill/Namah regime because the law and the Constitution were quite clear? So to rule with the three in the majority will be inconsistent with their earlier ruling?

Quite right Tavurvur communication between friends, workmates or closed group of people in confidence, by whatever means, is usually privileged communication. It has no use or purpose for anyone outside that closed group. But the timing of its leakage is also important. On the eve of the judges handing down their decisions, that email is leaked out and on the day of the judgment two judges are jumping up and down and saying they have been compromised but that email was sent in early February, some three months back. Why are they reacting now when they must be doing their job? Or has something bitten them?

Look at it from this angle. On the day this two references were to be heard, a minute or memo purportedly written to the judges by one of the three judges was leaked out. There was wide publicity and call from the judge’s disqualification. Alleged author refused to disqualify and hears the case. On the day of the decision, an email purportedly authored by the same judges which predates the memo was leaked out and while there was call from him to disqualify, his colleagues decided to disqualify themselves. Why? Is this not playing politic. It is of no consequence for them to disqualify without causing any drama unless they intended the consequences that were to follow.

Kirk – that is indeed an interesting angle to look at this issue from. To be honest, we will never really know for certain unless one of the five front up and opens up publicly.

Sadly, whatever the reasoning or causes, there certainly does exist now within the public domain the perception that our judicial system is ‘corrupt’ or ‘unethical’. This is concerning.

Quite possibly, one way to address this would be to strengthen our institutions and revamp the Constitution so that when we do end up in such a scenario again, we don’t necessarily have to run to the courts for a solution.

Your right Tavurvur, this is very disconcerting. And public perception could be correct that the last bastion of hope for the little men on the street could well be gone now with judges from within openly colluding with those outside to play dirty smear campaign against each other. But for what? When lawyers like Paul Paraka carrying huge money bag flying all the way from Port Moresby to Alotau chasing after a particular judge to obtain favourable urgent orders when such application could have been pursued in Waigini through the Registry, you beging to ask, is this judge in this lawyer’s payroll too?

Tavurvur you are in the position that through your column you get this interesting exchanges of information that can be utilised in the right way to get the ball rolling in the interest of the country. There need’s to be a full investigation into the conduct and behavioujr of these judges, they have enjoyed the so called immunity for too long from external sources. Kirk